1. Applicant's Name: a. Application Date: 9 April 2019 b. Date Received: 12 April 2019 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The current characterization of service for the period under review is under other than honorable conditions. The applicant requests an upgrade to general, under honorable conditions. The applicant seeks relief contending, in effect, an upgrade would allow him the opportunity to purchase a home for himself and his family. In a records review conducted on 14 July 2021, and by a 5-0 vote, the Board denied the request upon finding the separation was both proper and equitable. Please see Section 9 of this document for more detail regarding the Board's decision (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Serious Offense) / AR 635-200, Paragraph 14-12c / JKQ / RE-4 / Under Other Than Honorable Conditions b. Date of Discharge: 5 December 2012 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: The applicant was informed of the following reasons: The applicant violated a lawful regulation on 30 September 2012 and was AWOL from 3 August 2012 until he was apprehended and returned to military custody on 31 August 2012. Additionally, the applicant was found guilty on 16 February 2012, at a Special Court-Martial, of the following charges: five specifications of larceny, three specifications of using or possessing illegal drugs, two specifications of AWOL, violating a lawful regulation, disrespecting a superior officer and attempted larceny. (3) Recommended Characterization: Under Other Than Honorable Conditions (4) Legal Consultation Date: 23 October 2012 (5) Administrative Separation Board: NA (6) Separation Decision Date / Characterization: 19 November 2012 / Under Other Than Honorable Conditions 4. SERVICE DETAILS: a. Date / Period of Enlistment: 25 March 2009 / 6 years b. Age at Enlistment / Education / GT Score: 23 / HS Graduate / 99 c. Highest Grade Achieved / MOS / Total Service: E-4 / 88M, Motor Transport Operator / 5 years, 5 months, 23 days d. Prior Service / Characterizations: RA, 25 October 2006 - 24 March 2009 / HD e. Overseas Service / Combat Service: SWA / Iraq (18 March 2007 - 6 June 2008) and (19 August 2009 - 3 June 2010) f. Awards and Decorations: ICM-2CS, ARCOM, AGCM, NDSM, GWOTSM, ASR, OSR- 2, Driver and Mechanic Badge-Mechanic g. Performance Ratings: NA h. Disciplinary Action(s) / Evidentiary Record: Special Court-Martial Order Number 5, dated 11 October 2012, reflects the applicant pled guilty and was found guilty of: On or about 13 September 2011, steal a gym bag, wallet, credit cards, driver's license, cell phone, and U.S. currency of an aggregate value of less than $500.00; On or about 13 September 2011, steal fuel, of a value of less than $500.00; On or about 26 September 2011, steal a Verizon Computer Pad, and a credit card, of a value of more than $500.00; On or about 26 September 2011, steal gum, greeting cards, and VISA gift cards, of an aggregate value of less than $500.00; On or about 21 September 2011, wrongfully possess some amount of methamphetamines; Between on or about 30 September 2011 and on or about 4 October 2011, wrongfully used methamphetamines; On or about 21 September 2011, fail to obey a lawful general order; On or about 22 October 2011, without authority absent himself from his unit until on or about 27 October 2011; On or about 3 November 2011, without authority, absent himself from his unit until he was apprehended on or about 26 December 2011; On or about 3 November 2001, willfully disobey a lawful command; and On or about 13 September 2011, attempt to steal groceries, of a value less than $500.00. The sentence consisted of reduction to private/E-1; forfeiture of $700.00 per month for a period of 12 months; confinement for 8 months; hard labor without confinement for 90 days; and to be credited with 52 days of confinement against the approved sentence. i. Lost Time / Mode of Return: AWOL, 25 October 2011 - 26 October 2011 / NIF Confinement, 4 November 2011 - 18 May 2012 / NA AWOL, 3 August 2012 - 30 August 2012 / Apprehended AWOL, 1 October 2012 - 3 October 2012 / NIF j. Diagnosed PTSD / TBI / Behavioral Health: Mental Status Evaluation, dated 2 October 2012, reflects the applicant was cleared for any administrative actions deemed appropriate by the command. The applicant could understand and participate in the administrative proceedings and could appreciate the difference between right and wrong. The applicant screened positive for post-traumatic stress disorder (PTSD) and traumatic brain injury (TBI). 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, DD Form 214 6. POST SERVICE ACCOMPLISHMENTS: None submitted with the application. 7. STATUTORY, REGULATORY AND POLICY REFERENCE(S): a. Section 1553, Title 10, United States Code (Review of Discharge or Dismissal) provides for the creation, composition, and scope of review conducted by a Discharge Review Board(s) within established governing standards. As amended by Sections 521 and 525 of the National Defense Authorization Act for Fiscal Year 2020, 10 USC 1553 provides specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD), Traumatic Brain Injury (TBI), sexual trauma, intimate partner violence (IPV), or spousal abuse, as a basis for discharge review. The amended guidance provides that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD, TBI, sexual trauma, IPV, or spousal abuse, as a basis for the discharge. Further, the guidance provides that Military Boards for Correction of Military/Naval Records and Discharge Review Boards will develop and provide specialized training specific to sexual trauma, IPV, spousal abuse, as well as the various responses of individuals to trauma. b. Multiple Department of Defense Policy Guidance Memoranda published between 2014 and 2018. The documents are commonly referred to by the signatory authorities' last names (2014 Secretary of Defense Guidance [Hagel memo], 2016 Acting Principal Deputy Under Secretary of Defense for Personnel and Readiness [Carson memo], 2017 Official Performing the Duties of the Under Secretary of Defense for Personnel and Readiness [Kurta memo], and 2018 Under Secretary of Defense for Personnel and Readiness [Wilkie memo]. (1) Individually and collectively, these documents provide further clarification to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. (2) Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. c. Army Regulation 15-180 (Army Discharge Review Board), dated 25 September 2019, sets forth the policies and procedures under which the Army Discharge Review Board is authorized to review the character, reason, and authority of any Servicemember discharged from active military service within 15 years of the Servicemember's date of discharge. Additionally, it prescribes actions and composition of the Army Discharge Review Board under Public Law 95-126; Section 1553, Title 10 United States Code; and Department of Defense Directive 1332.41 and Instruction 1332.28. d. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. (1) Chapter 3, Section II provides the authorized types of characterization of service or description of separation. (2) Paragraph 3-7a states an Honorable discharge is a separation with honor and is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. (3) Paragraph 3-7b states a General discharge is a separation from the Army under honorable conditions and is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. (4) Paragraph 3-7c states Under other-than-honorable-conditions discharge is an administrative separation from the Service under conditions other than honorable and it may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial based on certain circumstances or patterns of behavior or acts or omissions that constitute a significant departure from the conduct expected of Soldiers in the Army. (5) Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. (6) Paragraph 14-3 prescribes a discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record. (7) Paragraph 14-12c, states a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. 8. DISCUSSION OF FACT(S): The Army Discharge Review Board considers applications for upgrade as instructed by Department of Defense Instruction 1332.28. The applicant requests an upgrade to general, under honorable conditions. The applicant's record of service, the issues and documents submitted with the application were carefully reviewed. The record confirms the applicant's discharge was appropriate because the quality of his service was not consistent with the Army's standards for acceptable personal conduct and performance of duty by military personnel. It brought discredit on the Army, and was prejudicial to good order and discipline. By the misconduct (serious offense), the applicant diminished the quality of his service below that meriting an honorable discharge at the time of separation. The applicant contends in effect, an upgrade would allow him the opportunity to purchase a home for himself and his family. 9. BOARD DISCUSSION AND DETERMINATION: a. As directed by the 2017 memo signed by A.M. Kurta, the board considered the following factors: (1) Did the applicant have a condition or experience that may excuse or mitigate the discharge? (YES) Applicant was diagnosed with Adjustment Disorder with anxiety and depressed mood and Adjustment Disorder with mixed emotional features while on active duty. Adjustment Disorder, in certain instances, is a condition that potentially can mitigate a discharge. (2) Did the condition exist or experience occur during military service? (YES) Applicant was diagnosed with Adjustment Disorder with anxiety and depressed mood and Adjustment Disorder with mixed emotional features while on active duty. Applicant's PTSD screen indicated moderate PTSD symptoms but did not meet cutoff for clinical diagnosis of PTSD. Applicant has screened positive for PTSD on several occasions. However, his positive PTSD screens were ultimately evaluated and found to be positive due to his ongoing criminal charges and incarceration. While the applicant screened positive for TBI based on blast exposure during his first deployment, the medical records reflect he was subsequently cleared by TBI and no further evaluation was indicated. (3) Does the condition or experience actually excuse or mitigate the discharge? (NO) While the applicant has been diagnosed with Adjustment Disorder and various Substance Use Disorders while on active duty, these conditions do not mitigate his multiple offenses of larceny, attempted larceny and drug-related misconduct. Adjustment Disorder may cause depression- like symptoms, anxiety, difficulty with daily activities, or avoiding important things such as going to work or paying bills. However, there is no association between larceny or drug use and his Adjustment Disorder and the evidence of record supports this finding. The applicant's conduct demonstrates that ... Because Adjustment Disorder may be associated with avoiding work, it could mitigate the offense of being absent without leave (AWOL). However, in the applicant's case, the ADRB's Medical Advisor review of the military medical records indicates that he likely went AWOL in an attempt to avoid incarceration as opposed to any nexus to any condition or experience during the applicant's enlistment period. The Board concurred with the Medical Advisor's judgement that the AWOL was an attempt to avoid incarceration and therefore did not mitigate the AWOL. (4) Does the condition or experience outweigh the discharge? (NO) The ADRB decided that applicant's diagnoses of Adjustment Disorder and various Substance Use Disorders do not outweigh his discharge characterization because none of these conditions mitigate the criminal behaviors in which he engaged. There is no association between larceny or drug use and Adjustment Disorder. While Adjustment Disorder may be associated with avoiding work and, as such, in certain circumstances could mitigate the offense of being AWOL, in the applicant's case, the ADRB's Medical Advisor review of the military medical records indicates that he likely went AWOL in an attempt to avoid incarceration. The Board concurred with the Medical Advisor's judgement that the AWOL was an attempt to avoid incarceration and not related to his behavioral health conditions. b. Response to Contention, an upgrade would allow him the opportunity to purchase a home for himself and his family. Eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board. Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance. c. The Board denied the request upon finding the separation was both proper and equitable. However, the applicant may request a personal appearance hearing to address the issues before the Board. The applicant is responsible for satisfying the burden of proof and providing documents or other evidence sufficient to support the applicant's contention(s) that the discharge was improper or inequitable. d. Rationale for Decision: (1) The Board voted not to change the applicant's characterization of service because, while the applicant has been diagnosed with Adjustment Disorder and various Substance Use Disorders, these conditions do not mitigate his multiple offenses of larceny, attempted larceny and drug-related misconduct. This is because there is no association between larceny or drug use and Adjustment Disorder. Because Adjustment Disorder may be associated with avoiding work, it could mitigate the offense of being absent without leave (AWOL). However, in the applicant's case, the ADRB's Medical advisor review of the military medical records indicates that he likely went AWOL in an attempt to avoid incarceration. The Board concurred with the Medical Advisor's judgement that the AWOL was an attempt to avoid incarceration. (2) The Board voted not to change the applicant's reason for discharge because, despite applying liberal consideration, there were no BH diagnoses which mitigated the criminal behaviors listed above and the reason the applicant was discharged was both proper and equitable. (3) Because the characterization and reason were not changed, the SPD/RE codes will not change. 10. BOARD ACTION DIRECTED: a. Issue a New DD-214 / Separation Order: No b. Change Characterization to: No Change c. Change Reason to: No Change d. Change Authority to: No Change e. Change SPD / RE Code to: No Change Authenticating Official: Legend: AWOL - Absent Without Leave AMHRR - Army Military Human Resource Record BCD - Bad Conduct Discharge BH - Behavioral Health CG - Company Grade Article 15 CID - Criminal Investigation Division ELS - Entry Level Status FG - Field Grade Article 15 GD - General Discharge HS - High School HD - Honorable Discharge IADT - Initial Active Duty Training MP - Military Police MST - Military Sexual Trauma NA - Not applicable NCO - Noncommissioned Officer NIF - Not in File NOS - Not Otherwise Specified OAD - Ordered to Active Duty OMPF - Official Military Personnel File PTSD - Post-Traumatic Stress Disorder RE - Reentry SCM - Summary Court Martial SPCM - Special Court Martial SPD - Separation Program Designator TBI - Traumatic Brain Injury UNC - Uncharacterized Discharge UOTHC - Under Other Than Honorable Conditions VA - Department of Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20190007975 1